Month: December 2022

It’s Been A Good Year For The ROSEs (& Bloggers Etc)

A tumultuous year ends. Authority after authority in the south east, or the Rest of the South East, as we used to call it before regional planning so as to exclude London, is pausing or going slow with its local plan, given the signals from Government that authorities will soon find it easier to decide not to plan to meet their local housing needs. (It’s not just in the south east I know but I desperately needed to make the Elvis Costello pun work).

In terms of policy, nothing yet has changed at all. But the excuses are already being found.

Planning Resource for instance reported on 19 December 2022 that:

  • Horsham District Council has delayed its cabinet meeting to consider its proposed Regulation 19 consultation draft plan from 15 December 2022.
  • Mole Valley District Council has paused preparation of its new local plan/
  • The Vale of White Horse and South Oxfordshire District Councils have announced an 11 month delay to the preparation of their emerging joint local plan

And this was before Michael Gove’s 22 December 2022 announcements as to proposed reforms to national planning policy that I blogged about that day (and which we will be discussing on clubhouse at 4 pm, 4 January – tune in to blow those cobwebs away! Join via this link – do RSVP in the link and get it in your diaries).

Someone please post some stats, I can’t immediately find them in my post-Christmas haze, but these delays have of course been building up over the year. Back on 2 September 2022 Planning Resource was reporting on the 19 authorities that have withdrawn or delayed local plans in the past year . Before that on 26 April 2022 Lichfields were reporting on 11 authorities that had either stalled, delayed or withdrawn their local plans. Go back even further to my 12 February 2022 blog post, Local Plan Breaking.

No doubt we will see over the course of 2023 how all this plays out in the light of the two successive waves of changes to the NPPF that we have now been told to expect.

It’s also been a good year for the bloggers and podcasters. Shout outs to Zack the Planorak, Nicola the Gooch, Sam 50 Shades Stafford, Raj Compulsory Reading Gupta and to my colleagues responsible for the Planning Law (With Chickens) podcasts (Victoria McKeegan, Nikita Sellers and Meeta Kaur). You all keep me on my toes and occasionally wondering what I have to add. But in any event thank you everyone for continuing to read and engage – sitting down every week for an hour or two to do these notes to self remains the only way I can hope to keep track for myself of what is happening and for people to find this occasionally useful or entertaining is always an unexpected bonus..

These were my most-read posts of 2022:

  1. New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper) (18 March 2022)
  2. Running Down That Hillside (2 November 2022)
  3. EZ Does It: Charter Cities, Freeports, Development Corporations (30 July 2022)
  4. Local Plan Breaking (12 February 2022)
  5. It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft (22 December 2022)

Looking back, these were the posts that pretty much wrote themselves in reaction to what was happening all around us: the neutralities issues, the implications of the Supreme Court’s ruling in Hillside, the bizarre happenings within that brief Truss premiership, the local plan making crisis and of course the Government’s planning reform agenda. In fact, at the foot of this post there is a table of month by month views of the blog since it started in June 2016. Views have been dependent not on any writing quality but on subject matter (oh, and the lockdowns certainly helped).

I’m sure there will be plenty of planning law to write about next year, all of it as yet unplanned.

Healthy new year all. And in the wise words of Elvis Costello: Get Happy.

Simon Ricketts. 31 December 2022

Personal views, et cetera

It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft

Plenty of easy Christmas present jokes to be had but I’ll avoid them – the Government’s consultation document on proposed reforms to national planning policy and indicative mark-up of the NPPF have arrived (22 December 2022).

There is much to take on board. By way of indication, the consultation document lists 58 questions. It’s 32 pages or so long.

But don’t panic!

Consultation doesn’t close until 3 March 2023. There is plenty of time for thinking to percolate and indeed to assist with that we have the special Planning Law Unplanned clubhouse discussion at 4pm on 4 January 2023 featuring various planners and planning lawyers. Join the event via this link – do RSVP in the link and get it in your diaries.

I am relieved that for once what we have been presented with is comprehensive and well explained. This is no longer a “prospectus” as to what the nature of the proposed changes but includes the actual proposed wording of the revised NPPF itself (this revision at least – another revision is already promised). The changes are by and large not a surprise, having been heavily trailed since Michael Gove resumed office. I urge you to scroll through the indicative mark-up of the NPPF – the changes are easy to spot, for instance:

  • watering down of the paragraph 11 (d) tilted balance and of the requirements on local planning authorities to maintain an adequate housing supply and meet housing delivery targets
  • watering down of the local plan “soundness” test
  • references to the standard method as only an “advisory starting point“
  • express references to the needs for retirement housing, housing with care and care homes
  • References to “beauty” and a weirdly specific passage extolling the virtues of mansard roofs
  • “Green Belt boundaries are not required to be reviewed and altered if this would be the only means of meeting the objectively assessed need for housing over the plan period“
  • Changes in relation to climate change and renewable energy
  • “The availability of agricultural land used for food production should be considered, alongside the other policies in this Framework, when deciding what sites are most appropriate for development“.
  • Important transitional arrangements in paragraph 225 and 226

But what is being consulted upon does not stop at the proposed changes to the NPPF but also covers various other longer term aspects of the reform agenda.

If one thing shines through the consultation document it is that re-construction of the system is going to be underway for some years. An indicative timeline:

Consultation closes: 3 March 2023

Government response to consultation and publication of revised NPPF: Spring 2023

Changes to take effect that are being consulted upon in the current document as to:

  • Increasing the emphasis on provision of social rented housing
  • More older people’s housing
  • More small sites for small builders
  • Greater emphasis on the role that community-led development can have in supporting the provision of more locally-led affordable homes

Consultation on proposed changes to the rest of the NPPF and on more detailed policy options and proposals for National Development Management Policies (supported by environmental assessments), once the Levelling-up and Regeneration Bill is passed through all its Parliamentary stages: from Spring 2023 (NB there is much already in the consultation document which helps in setting out more clearly than previously the intended scope of national development management policies, which will be in a separate document to the NPPF)

Three further measures to be introduced, via changes to the NPPF to encourage developers to build out “as soon as possible”:

“a) We will publish data on developers of sites over a certain size in cases where they fail to build out according to their commitments.

b) Developers will be required to explain how they propose to increase the diversity of housing tenures to maximise a development scheme’s absorption rate (which is the rate at which homes are sold or occupied).

c) The National Planning Policy Framework will highlight that delivery can be a material consideration in planning applications. This could mean that applications with trajectories that propose a slow delivery rate may be refused in certain circumstances.”

There will be “a separate consultation on proposals to introduce a financial penalty against developers who are building out too slowly”.

Changes to the soundness test will apply to local plans which have not reached pre-submission consultation stage within 3 months of the revised NPPF: summer 2023

Further updates to the NPPF: later in 2023

Whilst flexibility as to the use of the standard method will be in place from Spring 2023 as part of the revised NPPF, there will be a review of standard method for calculating local housing need, once 2021 census is published: 2024 (NB “It remains our intention to publish the 2022 Housing Delivery Test results. However, given our proposed changes and consultation on the workings of the Housing Delivery Test, we would like to receive views on whether the test’s consequences should follow from the publication of the 2022 Test or if they should be amended, suspended until the publication of the 2023 Housing Delivery Test, or frozen to reflect the 2021 Housing Delivery Test results while work continues on our proposals to improve it. We will take a decision on the approach to the Housing Delivery Test and the implementation of any the proposed changes in due course, once we have analysed consultation responses”).

Implementation of the LURB plan-making reforms: late 2024

Transitional arrangements will mean that for the purposes of decision-making, “where emerging local plans have been submitted for examination or where they have been subject to a Regulation 18 or 19 consultation which included both a policies map and proposed allocations towards meeting housing need, those authorities will benefit from a reduced housing land supply requirement. This will be a requirement to demonstrate a 4-year supply of land for housing, instead of the usual 5”: two year transitional period, so until Spring 2025

Deadline of 30 June 2025 for plan makers to “submit their local plans, neighbourhood plans, minerals and waste plans, and spatial development strategies for independent examination under the existing legal framework; this will mean that existing legal requirements and duties, for example the Duty to Cooperate, will still apply.

We are also proposing that all independent examinations of local plans, minerals and waste plans and spatial development strategies must be concluded, with plans adopted, by 31 December 2026. These plans will be examined under the current legislation.”

Latest date for any old-style local and minerals and waste plans to be adopted (or in the case of Strategic Development Strategies, published): April 2027

Latest date when LPAs must begin the new style plan-making process (if their previous plan was adopted on 31 December 2026): 31 December 2031

Of course these dates, all of them taken from or derived from the consultation document, could slip (surely not!) and priorities could move in an entirely different direction, but somehow I sense that this is a package of reforms which is more likely to stick. So let’s have a rest for a week or so after a ridiculous year, maybe tune in on 4 January, but in any event do some constructive thinking over the next couple of months ahead of that consultation deadline. It’s a serious set of proposals which deserves a serious response. Since I came off Twitter I think I may be getting a bit soft….

Merry Christmas.

Simon Ricketts, 22 December 2022

Personal views, et cetera

Photo courtesy of Mel Poole via Unsplash

Prospective Prospectus

My 6 December 2022 blog post Gove Gives: Local Housing Need Now Just “Advisory” summarised the contents of his written ministerial statement that day which promised a “National Planning Policy Framework prospectus, which will be put out for consultation by Christmas”.

I mentioned in the blog post a letter which he had written to all MPs the previous day which had gone into more detail that the statement. I hadn’t included a link to the letter. It is here. What is even more interesting is that there is another letter, of the same date, written just to Conservative MPs. The link to that one is here.

The introduction to the letter to Conservative MPs makes the intended policy direction very clear. For instance:

“Whatever we do at a national level, politics is always local and there is no area that demonstrates this more than planning. Through reforms made by Conservative-led governments since 2010, we have a locally-led planning system – for instance, by scrapping policies like top-down regional targets that built nothing but resentment – and introducing neighbourhood planning. These reforms have delivered a record of which Conservatives can be proud. I also do not need to remind you that under the last Labour government, housebuilding reached its lowest rate since the 1920s.

But there is much more to do to ensure we can build enough of the right homes in the right places with the right infrastructure, and to ensure that local representatives can decide where – and where not – to place new development. As Conservatives, we recognise both the fundamental importance of home ownership and that we can only deliver the homes we need if we bring the communities we represent with us. These are the promises on which we stood in our manifesto and ones that I and the Prime Minister are determined to deliver.

I am therefore writing to set out the further changes I will be making to the planning system, alongside the Levelling Up and Regeneration Bill, which address many colleagues’ concerns. They will place local communities at the heart of the planning system.

As you know I share the views of many colleagues about the current system. That it does not provide the right homes in the right places, and at its worst risks imposing ever more stretching housing targets that are out of touch with reality – leading to developers taking advantage through planning by appeal and speculative development. Communities feel that they are under siege, and I am clear that this approach will never be right or sustainable if we want to build the homes that our communities want and need.”

This Government weaves around planning reform like Kylian Mbappe. First the 2020 white paper, then the u-turn after the Chesham and Amersham by-election, then the Kwarteng “growth growth growth” plan – and now placing house-building delivery firmly in the hands of “communities” – in reality, at root, existing home owners – with a weakened process for local plan examination:

“I will ensure that plans no longer have to be ‘justified’, meaning that there will be a lower bar for assessment, and authorities will no longer have to provide disproportionate amounts of evidence to argue their case.”

Is all of this just another feint, a shimmy past the Tory rebel MPs to ensure that planning reform can actually progress? Or genuine capitulation – genuflection to the election pamphlet needs of political colleagues? Zack Simons doesn’t mince his words in his 8 December 2022 blog post Notes on reform: the Government gives up – essential reading.

The matters to be consulted upon in the forthcoming prospectus are numerous. Steve Quartermain and I were counting them this week and ran out of fingers – the letters include commitments to consultation as to at least the following matters:

  • Changes to the method for calculating local housing need figures
  • Dropping the requirement for a 20% buffer to be added to housing land supply numbers for both plan making and decision taking
  • What should be within the scope of the new National Development Management Policies
  • Each new National Development Management Policy before it is brought forward
  • Detailed proposals for increases in planning fees
  • A New planning performance framework that will monitor local performance across a broader set of measures of planning service delivery, including planning enforcement
  • Further measures (i) allowing local planning authorities to refuse planning applications from developers who have built out slowly in the past and (ii) making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building
  • A new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty
  • How to address the issue of the planning system being “undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their commitments to the community”.
  • Amending national policy to support development on small sites, particularly with respect to affordable housing
  • Further measures that would prioritise the use of brownfield land
  • Details of how a discretionary registration scheme for short term lets in England would be administered
  • Reviewing the Use Classes Order so that it “enables places such as Devon, Cornwall and the Lake District to better control changes of use to short term lets if they wish“.

There is a lot to take in here – both what is written and what is between the lines. To try to help make sense of the prospectus when it lands, there will be a special Planning Law Unplanned clubhouse discussion at 4pm on 4 January 2023 featuring various planners and planning lawyers, including myself, Zack, Steve and many more. Join the event via this link – do RSVP in the link and get it in your diaries.

Simon Ricketts, 10 December 2022

Personal views, et cetera

Gove Gives: Local Housing Need Now Just “Advisory”

A deal has been reached between the Government and those rebel MPs who had threatened to derail the Levelling-up and Regeneration Bill. And so we have Michael Gove’s written statement to the House of Commons today 6 December 2022, in the wake of a letter written to all MPs on 5 December 2022 and a 5 December 2022 press statement. Of course, when we talk about the Bill, that is short-hand for the reform package as a whole, including most crucially the proposed amendments to the National Planning Policy Framework. 

Those proposed amendments are soon to be fleshed out in the National Planning Policy Framework prospectus, “which will be put out for consultation by Christmas” (i.e. by the time that the Commons rises on 20 December 2022). It is going to be thin gruel for those of us who believe that this country has a housing crisis and that part of the solution to that crisis is to build more homes, where they are most needed.  

I’ll just summarise here what the written ministerial statement covers. The letter to MPs goes into further detail.

There will be an amended method for calculating local housing need, which will be “advisory”. “It will be up to local authorities, working with their communities, to determine how many homes can actually be built, taking into account what should be protected in each area – be that our precious Green Belt or national parks, the character of an area, or heritage assets. It will also be up to them to increase the proportion of affordable housing if they wish.”

Of course it is not currently mandatory that local authorities plan for the level of local housing need arrived at via the current standard method, but there is a heavy onus on authorities to justify departures. 

Paragraph 35 of the current NPPF sets out the “soundness test”, including that plans are “positively prepared”, meaning that they are “providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development.”

Paragraph 61 of the current NPPF says this:

“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”

It is plain that those circumstances are now to be widened, in ways which are more subjective, eg relying on perceived capacity constraints based on “the character of an area” (the letter to MPs gives the example of for instance “new blocks of high-rise flats which are entirely inappropriate in a low-rise neighbourhood” and talks of the need for “gentle densities”).  It will be open season for authorities and/or local campaigners to press the case for lower numbers to be adopted and/or for the required proportion of affordable housing to be set at such a financially onerous level that in practice chokes off the prospect of development. The proposed abolition of the duty to cooperate and its replacement by an “alignment” mechanism yet to be articulated just increases the plain jeopardy here. Open question: how will the Government be able to hold to its 300,000 homes a year target if significant numbers of authorities adjust their numbers downwards? Another open question: how important is mitigating the housing crisis to the Government versus fending off internal rebellions and having constituency-friendly developer-phobic policies?

Five year housing land supply requirement:

“We will end the obligation on local authorities to maintain a rolling five-year supply of land for housing where their plans are up-to-date. Therefore for authorities with a local plan, or where authorities are benefitting from transitional arrangements, the presumption in favour of sustainable development and the ‘tilted balance’ will typically not apply in relation to issues affecting land supply.

I also want to consult on dropping the requirement for a 20% buffer to be added for both plan making and decision making – which otherwise effectively means that local authorities need to identify six years of supply rather than five. In addition, I want to recognise that some areas have historically overdelivered on housing – but they are not rewarded for this. My plan will therefore allow local planning authorities to take this into account when preparing a new local plan, lowering the number of houses they need to plan for.”

“…Where authorities are well-advanced in producing a new plan, but the constraints which I have outlined mean that the amount of land to be released needs to be reassessed, I will give those places a two year period to revise their plan against the changes we propose and to get it adopted. And while they are doing this, we will also make sure that these places are less at risk from speculative development, by reducing the amount of land which they need to show is available on a rolling basis (from the current five years to four).”

“I will increase community protections afforded by a neighbourhood plan against developer appeals – increasing those protections from two years to five years…”

Ensuring timely build out:

“I already have a significant package of measures in the Bill to ensure developers build out the developments for which they already have planning. I will consult on two further measures:

i) on allowing local planning authorities to refuse planning applications from developers who have built slowly in the past; and

ii) on making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building.

I will also consult on our new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty.”

Character of a developer:

“I have heard and seen examples of how the planning system is undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their legal commitments to the community. I therefore propose to consult on the best way of addressing this issue, including looking at a similar approach to tackling the slow build out of permissions, where we will give local authorities the power to stop developers getting permissions.”

Brownfield first:

“I will consult to see what more we can do in national policy to support development on small sites particularly with respect to affordable housing and I will launch a review into identifying further measures that would prioritise the use of brownfield land. To help make the most of empty premises, including those above shops, I am reducing the period after which a council tax premium can be charged so that we can make the most of the space we already have. I will also provide further protection in national policy for our important agricultural land for food production, making it harder for developers to build on it.”

Tourist accommodation/short-term lets

“I intend to deliver a new tourist accommodation registration scheme as quickly as possible, working with DCMS, starting with a further short consultation on the exact design of the scheme. I will also consult on going further still and reviewing the Use Classes Order so that it enables places such as Devon, Cornwall, and the Lake District to control changes of use to short term lets if they wish.”

More anon. 

Simon Ricketts, 6 December 2022

Personal views, et cetera

Ps In A Pod: Politics, Planning, Protest & Prevarication

Planning still appears to have been taken hostage by internal Tory political infighting. See e.g. Tory backbenchers rebel over national housing targets (SP Broadway, 2 December 2022).

In a more innocent time, September 2014, I delivered a paper to the Oxford Joint Planning Law Conference, Heroes and Villains — Challenge and Protest in Planning: What’s a Developer To Do?   

Since then the antagonism seems to have increased and areas of common ground seem to reduced. Planning and heritage processes are frequently just another battleground in this time of global and cultural division. 

I was going to pull together a few more strands today, for instance on contested heritage (I’m conscious that I haven’t yet covered the Court of Appeal’s September 2022 ruling following the acquittal of the “Colston Four”), the closure by the Wellcome Collection of its “Medicine Man” gallery, on the battle for control of the National Trust and much else besides. 

But I’m just going to pick the most recent item from this week’s news. It’s possible  that politics played as much a role as planning in the decision on 1 December 2022 by the London Borough of Tower Hamlets’ Strategic Development Committee, against officers’ recommendations, to refuse planning permission for the redevelopment of Royal Mint Court, near the Tower of London, to establish a new Chinese Embassy (replacing its existing embassy on Portland Place), including “the refurbishment and restoration of the Johnson Smirke Building (Grade II listed), partial demolition, remodelling and refurbishment of Seaman’s Registry (Grade II listed), with alterations to the west elevation of the building, the retention, part demolition, alterations and extensions to Murray House and Dexter House, the erection of a standalone entrance pavilion building, alterations to the existing boundary wall and demolition of substation, associated public realm and landscaping, highway works, car and cycle parking and all ancillary and associated works.”

51 objections had been received, raising a range of planning and non-planning objections. One has a sense of non-planning issues swirling around from the officer’s report which, after summarising the various planning and heritage based objections received, sets out the “non-material considerations” raised by objectors as including:

  • “Concerned about the building becoming a secret police station
  • Concerned about the violent assault of protesters at the Manchester Chinese Consulate
  • Concerned about the actions of the Chinese government in relation to other countries and human rights record
  • All phone calls and fibre optic cables will be listened to as the site is adjacent to a BT telephone exchange”. 

The minutes are not yet available but I understand that the Committee resolved that the proposals would “affect the ‘safety and security’ of residents, such as those at next-door Royal Mint Estate, cause harm to heritage assets, impact the quality of the area as a tourist destination and have an impact on local police resourcing.”

The decision has attracted widespread media attention, not just in the UK (see for instance London council rejects new Chinese embassy amid residents’ safety fears (Guardian, 2 December 2022) and David Chipperfield’s Chinese embassy complex rejected by London council (Architects Journal, 2 December 2022)) but across the world. 

What is going to happen next? The People’s Republic of China has owned the site outright since 2018 and they are hardly going to walk away from the project. Michael Gove could conceivably call the application in before the refusal notice is issued, or China could appeal against the refusal and the appeal would presumably be recovered for his determination following recommendations from an inspector who would hold a public inquiry. 

The political sensitivities are surely going to ramp up, no matter what. Perhaps this application should have been called in by the Government at an earlier stage rather than leave committee members with (1) such a difficult decision, balancing local concerns against international diplomatic responsibilities, and (2) such power. But I’m sure the government would have loved to have left this particular hot potato well alone. And they thought that juggling an appearance of dealing with the housing crisis with an appearance of leaving communities in control of local housing numbers was difficult….

Simon Ricketts, 3 December 2022

Personal views, et cetera

Photo courtesy of Rachael Gorjestani on Unsplash